Md. Mansur Rahman Vs. Abdul Mannan Sardar and others, 2009

 

Supreme Court

Appellate Division

(Civil)

Present:

MM Ruhul Amin CJ

Mohammad Fazlul Karim J

Md. Abdul Matin J

Shah Abu Nayeem Mominur Rahman J

ABM Khairul Haque J

Md. Mansur Rahman ………………………………………Petitioner

 Vs.

 Abdul Mannan Sardar and others ……………………Respondents

 Judgment

November 2, 2009.

Lawyers Involved:

Chowdhury Md. Zahangir, Advocate-on-Record-For the Petitioner.

Mrs. Sufia Khatun, Advocate-on-Record-For Respondent No. 1.

Not represented-Respondent Nos. 2-3.

Civil Petition for Leave to Appeal No.240 of 2009.

(From the judgment and order dated 26.11.2008 passed by the High Court Division in Writ Petition No.10220 of 2007.)

Judgment

Shah Abu Nayeem Mominur Rahman J.- Instant leave petition under Article 103 of the Constitution is for granting leave to appeal against the judgment and order dated 26.11.2008 passed in Writ Petition No.10220 of 2007 by the High Court Division making the Rule absolute and thereby setting aside the order No. 60 dated 28.10.2007 passed by the Artha Rin Adalat, Bogra, in Money Execution Case No.142 of 2000 allowing the application filed under Section 57 of the Artha Rin Adalat Ain, 2003 and thereby setting aside the auction sale dated 18.08.2005.

2. The decree holder Agrani Bank filed Artha Rin Case No.49 of 1997 in the Court of Artha Rin Adalat, Bogra, for real­ization of Tk.13,34,503.62/-, being the outstanding loan as of date, due from the judgment debtor-petitioner hereof. The suit was decreed ex-parte on 26.05.1998 in preliminary form and was made final on 03.06.1999 and in order to satisfy the decree, the decree holder bank filed Execution Case No. 142 of 2000 and com­plying with the provisions of the Artha Rin Adalat Ain, 2003, and under direction of the Executing Court an auction-sale notice for sale of the mortgaged property was published in two daily newspapers and the judgment debtor-petitioner hereof entered appearance in the execution case on 08.08.2005 and prayed for adjourn­ment of the sale with a plea of compro­mise and that the Executing Court allowed time fixing 11.08.2005 for filing compro­mise petition but the judgment debtor-petitioner did not file the required com­promise and hence the Executing Court fixed 18.08.2005 for auction and on that date the auction purchaser-respondent No.1 hereof participated in the bid and his bid, being highest, was accepted. Accordingly he deposited 25% of the bid money on that date and subsequently deposited the balance of the bid money. Thereafter the auction sale was made final.

3. The judgment debtor-petitioner filed an application under Order 21 Rule 90 of the Code of Civil Procedure read with Section 57 of the Artha Rin Adalat Ain, 2003 for setting aside the auction, which was regis­tered as Miscellaneous Case No.58 of 2005 and the said Miscellaneous Case was dismissed vide order dated 20.11.2005. The judgment debtor-petitioner also filed Miscellaneous Case No.59 of 2005, which was also dismissed on the same date.

4. Then the decree holder moved the High Court Division in Writ Petition No.7211 of 2005 and the Rule issued therein on 23.10.2005 was discharged vide judgment and order dated 26.09.2007. Thereafter the judgment debtor-petitioner filed another application under Section 57 of the Artha Rin Adalat Ain, 2003 on 24.10.2007 for setting aside the auction sale and the Executing Court allowed the application by order dated 28.10.2007 and being aggrieved there-against the auction pur­chaser-respondent No.1 moved the High Court Division in Writ Petition No.10220 of 2007 challenging the propriety of said order dated 28.10.2007 passed by the Executing Court. The rule issued in the said Writ Petition was heard and disposed of by the impugned judgment and order dated 26.11.2008 making the Rule absolute and thereby setting aside the impugned order No.60 dated 28.10.2007 passed in Money Execution Case No. 142 of 2000 by the Artha Rin Adalat, Bogra upholding the auction-sale.

5. The High Court Division arrived at its decision on consideration of the facts and circumstances of the case observing, amongst others, the following:

“The respondent No.1, admittedly, filed an application under Order 21 Rule 90 of the Code of Civil Procedure on 25.08.2005 and that application was registered as Miscellaneous Case No.58 of 2005. Admittedly that miscellaneous case was dismissed by the Adalat after full hearing and consideration. Rule 89(2) of order 21 of the Code of Civil Procedure provides that where a person applies under rule 90 of order 21 to set aside the sale of his immovable property he shall not be enti­tled to make an application under rule 89 of order 21 of the Code of Civil Procedure. So, it appears that the applica­tion of the respondent No.1 for setting aside the auction sale on deposit of money as per order 21 rule 89 of the Code of Civil Procedure was not entertainable on this Court also.

6. However, considering the above facts and circumstances we find that there was no scope for setting aside the auction sale in question on the prayer for the respon­dent No.1 made long 3 years after the impugned auction sale. The learned Judge of the Artha Rin Adalat, Bogra, therefore, committed wrong and illegality in setting aside the auction sale in question by the impugned order.”

7. We have perused the leave petition as well the impugned order passed by the High Court Division and also the order passed by the Executing Court and consid­ered the submissions made by the learned Advocate appearing for the leave petition­er. It appears that the application filed for setting aside the auction sale under Section-57 of the Ain after disposal an application filed earlier under Order 21 Rule 90 of the Code of Civil Procedure on 25.08.2005 is not entertainable and further the application filed under Section 57 of the Artha Rin Adalat Ain, 2003 is also not maintainable, in view of the fact that the judgment debtor filed earlier another application under Order 21 Rule 98 read with Section 57 of the Artha Rin Adalat Ain, 2003 for setting aside the auction sale unsuccessfully.

In the facts and circumstances of the case, we do not find any merit in the appli­cation.

The petition is accordingly dismissed.

Ed.

Source : VII ADC (2010) 623

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